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HomeMy WebLinkAboutResolution - 2013-R0157 - License Agreement - Lubbock Moonlight Musicals Inc. - 05/23/2013Resolution N0. 2013-RO157 May 23, 2013 Item No. 5.19 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock a License Agreement, by and between the City of Lubbock and Lubbock Moonlight Musicals, Inc., and all related documents. Said Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council this May 23, 2013 , 2013. �OAII - GLOKC. RO RTSON, MAYOR ATTEST: APPROVED AS TO CONTENT: Freddy Chave , Director of Services APPROVED AS TO FORM: gs./ccdocs-res-Lubb Moonlight Musicals,lnc. 5.15.13 Resolution N0. 2013-RO157 LICENSE AGREEMENT THE STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF LUBBOCK This License Agreement (the "Agreement') is entered into on the 23rd day of May, 2013, between the City of Lubbock, Texas (the "City), a Texas Home Rule Municipal Corporation, and Lubbock Moonlight Musicals, Inc. ("LMMI"), a State of Texas nonprofit organization. RECITALS WHEREAS, LMMI desires to construct improvements, which shall include a permanent light/sound booth, masking walls, and louvered stage walls at the Wells Fargo Amphitheater (the "Project") as reflected on Exhibit "A"; WHEREAS, it is the belief of the City and LMMI that the Project will encourage the use of the Wells Fargo Amphitheater and encourage tourism to the City; WHEREAS, LMMI desires to construct the Project over and on that certain real property described on Exhibit `B" attached hereto (the Lands"); WHEREAS, the mission of LMMI is to produce and present large, family-oriented musical theatrical works, using the talents and abilities of Texas Tech Music Theatre students and other college-age students, Lubbock -area and other high school students, local Lubbock talent and other artistic/technical professionals, to build and promote goodwill among the city of Lubbock, Texas Tech and local and area school districts, to promote tourism to the City of Lubbock and the South Plains, and to give professional experience to all student performers involved; WHEREAS, LMMI has secured funds for the Project; WHEREAS, the Project shall enhance and improve the use of the facilities in the Wells Fargo Amphitheater; NOW THEREFORE: ARTICLE I License Section 1.01. License. In consideration of the mutual covenants and agreements of this Agreement, and of other good and valuable consideration, the City hereby grants, upon the terms and conditions set forth in this Agreement, a license on and over the Lands to LMMI, for the sole purpose of constructing and improving the Project. Section 1.02. Term. The term of this license is for one (1) year beginning on the date of the execution of this Agreement by the City, and ending on the first anniversary of such date or until such date the Project is completed and accepted by the City as set forth in Section 2.05, whichever period is shorter (the "Primary Term"), unless terminated sooner as provided in this Agreement. This Agreement shall terminate without further notice when the Primary Term expires, and LMMI shall immediately vacate the Lands. Any holding over by LMMI after that term expires, except as provided otherwise in this Agreement, shall not constitute a renewal of this Agreement, or provide LMMI any rights whatsoever under this Agreement and/or to the Lands. ARTICLE II Improvements Section 2.01 Construction of Project. On or before May 30, 2013, LMMI and/or its contracted agent shall begin construction, or cause to begin constriction, and begin location upon the Lands, the Project. The Project shall include improvements to the Wells Fargo Amphitheater. Section 2.02. Approval of Construction. No construction of any type or kind, including additions or alterations to existing structures or structures completed, or caused to be completed, by LMMI and/or placement or location of improvements, including all matters described in this Article II, may be commenced, unless the plans, specifications and proposed location of such construction and/or location of improvements have received the City's, and if required by the City or by law, any other entities' or parties', including, but not limited to, the State of Texas, Texas Parks and Wildlife Department and Texas Historical Commission, prior written approval, as described below. LMMI shall, at its own expense, engage a licensed architect or engineer to prepare plans and specifications for the construction, addition, location or alteration of any building or improvement. LMMI shall submit a copy of detailed working drawings, plans and specifications to the City for its approval not less than twenty (20) days before such construction or location of improvements is scheduled to commence. The City, and any other parties having the right of approval, as described herein, shall review all plans submitted under this Section 2.02, and provide to LMMI, in writing, any required changes or corrections that must be made, that the City, and any other parties having the right of approval, as described herein, may deem necessary, in their sole discretion, Any required changes or corrections shall be made and the plans resubmitted to the City, and any other parties having the right of approval, as described herein, prior to the commencement of such construction, addition or alteration of any building or location of improvement. No such construction, addition or alteration of any building or location of improvement shall be commenced unless and until the plans are finally approved by the City and any other parties having the right of approval, as described herein. The failure to receive the approval described herein shall not excuse the performance by LMMI of any activity or covenant described in this Agreement. The City and/or any of the parties having the right of approval, as described herein, shall have the right at all times to observe any and all activities described in this Article II. Notwithstanding the approval by the City and/or any of the parties having the right of approval, as described herein, of any plans and specifications, and/or the observation rights of the City and/or any of the parties having the right of approval, ad described herein, the City assumes no liability or responsibility for the architectural or engineering design or for any defect in any building or improvement constructed from such plans or specifications, not shall such approval and/or observation relieve LMMI from any or all of its obligations hereunder. All activities described in this Article II shall be at the sole cost and expense of LMMI. Section 2.03. Surety; Any and all contracts that LMMI may enter into with third parties to participate in the construction and/or location of improvement activities contemplated by this Agreement shall contain the requirement that such third parties adequately bond their performance under said contract, naming the City as a co -beneficiary or co -secured. The original of said bonds are to be suitable in form to the City and submitted to the City prior to the commencement of any activities of any kind by such third parties. Section 2.04. Standards for Construction. Construction of the Project shall be conducted and shall be fully equipped in a good and skillful manner with materials of high quality, strictly in accordance with the plans and specifications, as approved in Section 2.02. Section 2.05. Acceptance of Project by City. Construction of the Project shall be deemed completed only upon inspection and acceptance by the City. If LMMI considers the Project construction complete, LMMI shall timely notify the City. The City shall then timely conduct inspections of the Project. If, after inspection, the City finds deficiencies or any issues with the construction of the Project, the City shall then submit a list of such deficiencies and/or issues to LMMI. LMMI shall then remedy all such deficiencies and/or issues with the construction. After completion of such remedies, LMMI shall timely notify the City of completion and the City shall again timely conduct inspections of the Project. If after inspection, the City finds that the construction of the Project is complete and satisfactory to the City, the City shall notify LMMI of the City's acceptance of the Project. The City's acceptance of the Project shall be within its sole discretion. Section 2.06. Ownership of Buildings and Improvements. Any and all buildings, improvements, additions, alterations and fixtures constructed, placed, located and/or maintained on any part of the Lands during the term of this Agreement, and removed and stored off the Lands by LMMI for annual maintenance subsequent to each playing season, are considered part of the real property and must remain on the Lands and become property of the City, from and after the termination of this Agreement. ARTICLE III Operations of LMMI Section 3.01. Security. LMMI shall take any and all actions necessary to prevent the entry of unauthorized persons in, on, and/or over the Lands. Such actions shall include, but are not limited to, the installation and maintenance of lighting facilities to illuminate the Lands. Section 3.02. Utilities. LMMI shall be responsible for providing and/or furnishing all utilities to the Lands and any and all improvements located thereon and shall bear any and all expenses of any kind or nature for the providing of same to the Lands and the utilization of same in connection with the construction of the Project. Such utilities shall include, without limitation, water, electricity, gas, power, sewage disposal and rubbish removal. Section 3.03. Taxes. LMMI shall pay and discharge all charges, including without limitation, personal property taxes, gross receipts taxes, general and special assessments, and other charges of similar nature which may be levied or assessed against the Lands, the Project, and/or any activity contemplated by this Agreement, if any. Section 3.04. Prohibition on Encumbrance. LMMI shall not encumber any interest in the license granted herein, the Lands, the improvements described herein, and/or this Agreement, in any way, manner or form, including, but not limited to, by deed of trust, mortgage or any other security instrument. Further, LMMI shall not cause or permit any mechanic's liens or any other liens to be filed against the license granted herein, the Lands, the improvements described herein, and/or this Agreement by reason of any work, labor, services, or materials supplied and/or performed or claimed to have been supplied and/or performed to, by or for LMMI or any contractors or subcontractors of LMMI. Section 3.05. Right of Entry—City. Nothing contained in this Agreement shall be construed to prohibit, upon reasonable notice to LMMI, the right of entry by the City, in, on, over and/or across the Lands, at any and all times, and for any and all purposes, and City expressly reserves the right to enter upon the Lands and any and all improvements located thereon, subject to the conditions stated herein, to conduct any and all activities the City deems necessary. LMMI shall furnish to the City any and all keys and/or instructions necessary to allow the City's right of entry reserved and/or described herein. Section 3.06. Control of City. The City shall retain all authority placed in it which is non - delegable. No provision of this Agreement shall be construed as delegating any non -delegable right, power or duty of the City, and in the event of a conflict between this Section 3.06 and any other term or provision of this Agreement, this Section 3.06 shall control and such conflicting term or provision shall be void and of no force and effect. Section 3.07. Assistance by the City. The City may from time to time, provide such assistance as requested by LMMI, including, but not limited to certified inspectors that would inspect the Project and notify the LMMI of any concerns. LMMI shall reimburse the City for any and all costs the City incurs by providing such assistance. ARTICLE IV Operation Funds Section 4.01. Solicitation of Funds. LMMI shall, during the effective term of this Agreement, utilize its best efforts to solicit funds from various sources, including, but not limited to, memorials, honorarians, grants, membership dues, concessions and gifts in kind, or any other like sources to be utilized in the construction, operation and maintenance of the Project. Section 4.02. Accounting and Audits. LMMI shall keep complete and accurate records, books and accounts according to customary and accepted business practices and generally accepted accounting principles, and the City shall have the right to examine and audit said records, books and accounts at any reasonable time. LMMI shall furnish the City an annual audit of its books by a certified public accountant, such audit report to be furnished to the City on or before ninety (90) days after the end of each fiscal year of LMMI. ARTICLE V Insurance, Indemnity and Release Section 5.01. Indemnity and Release. LMMI SHALL INDEMNIFY AND HOLD HARMLESS, TO THE FULLEST EXTENT PERMITTED BY LAW, THE CITY, AND CITY'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND AGENTS, FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, CLAIMS OR LIABILITIES, OF ANY KIND OR NATURE, WHICH ARISE DIRECTLY OR INDIRECTLY, OR ARE RELATED TO, IN ANY WAY, MANNER OR FORM, THE ACTIVITIES CONTEMPLATED HEREUNDER, OR THE OMISSION OF THE ACTIVITIES CONTEMPLATED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, LOSSES, DAMAGES, CLAIMS OR LIABILITIES ARISING FROM OR RELATED TO, IN ANY WAY, MANNER OR FORM, THE ACT OR OMISSION OF THIRD PARTIES. LMMI FURTHER COVENANTS AND AGREES TO DEFEND ANY SUITS OR ADMINISTRATIVE PROCEEDINGS BROUGHT AGAINST THE CITY AND/OR THE CITY'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND/OR AGENTS ON ACCOUNT OF ANY SUCH CLAIM, AND TO PAY OR DISCHARGE THE FULL AMOUNT OR OBLIGATION OF ANY SUCH CLAIM INCURRED BY, ACCRUING TO, OR IMPOSED ON THE CITY, OR THE CITY'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND/OR AGENTS, AS APPLICABLE, RESULTING FROM ANY SUCH SUITS, CLAIMS, AND/OR ADMINISTRATIVE PROCEEDINGS OR ANY MATTERS RESULTING FROM THE SETTLEMENT OR RESOLUTION OF SAID SUITS, CLAIMS, AND/OR ADMINISTRATIVE PROCEEDINGS IN ADDITION, LMMI SHALL PAY TO THE CITY, THE CITY'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND/OR AGENTS, AS APPLICABLE, ALL ATTORNEYS' FEES INCURRED BY SUCH PARTIES IN ENFORCING LMMI'S INDEMNITY IN THIS SECTION. THE CITY, AND ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND AGENTS, SHALL NOT BE LIABLE, AND LMMI HEREBY RELEASES THE CITY, C AND ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND AGENTS, FOR, FROM AND/OR AGAINST ANY LOSSES, DAMAGES, CLAIMS OR LIABILITIES TO LMMI, ON ANY THEORY OF LEGAL LIABILITY, INCLUDING, BUT NOT LIMITED TO THE NEGLIGENCE, OF ANY TYPE OF DEGREE, OR FAULT, OF THE CITY. THE INDEMNITY AND RELEASE PROVIDED HEREIN SHALL SURVIVE THE TERMINATION OR VOIDANCE OF THIS AGREEMENT. Section 5.02. Insurance. LMMI and all contractors and/or subcontractors of LMMI shall procure and carry, at their sole cost and expense during the term of any construction of the Project, insurance protection and hereinafter specified, in form and substance satisfactory to the City, carried with an insurance company authorized to transact business in the State of Texas, covering all foreseeable aspects and operations in connection with the construction contemplated under this Agreement, including, but not limited to, all aspects, operations and/or occurrences to which LMMI has indemnified the City, as provided in Section 5.01 hereof. A Certificate of Insurance specifying each and all coverages shall be submitted to the City no later than fifteen (15) days prior to the commencement of construction activities. LMMI shall provide to the City proof of the below - described insurance on or before fourteen (14) days prior to the expiration date of each expiring policy, and cause each required policy to require the insurer to (i) give notice to the City, as specified herein, of termination of any such policy sixty (30) days before such termination is to be effective; and (ii) contain a waiver of any and all of the insurer's rights to subrogation that any such insurer or insurers may acquire by virtue of payment of any loss under such insurance. A. Builder's Risk Insurance. All contractors and/or subcontractors of LMMI shall have Builder's Risk Insurance in the amount of one hundred percent (100%) of the prices of each contract relating to the construction activities contemplated in this Agreement. B. General Liability Insurance. LMMI and all contractors and/or subcontractors of LMMI shall have general liability insurance with Limits of $500,000 combined single limit in the aggregate and per occurrence. The City shall be named as an additional insured in such policies. C. Worker's Compensation. LMMI shall ensure that each and every contractor and subcontractor shall elect to obtain worker's compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, LMMI shall ensure that each and every contractor and subcontractor shall maintain said coverage throughout the term of this Agreement and LMMI shall ensure that each and every contractor and subcontractor shall comply with all provisions of Title 5 of the Texas Labor Code to ensure that any such contractors and/or subcontractors maintain said coverage. Any termination of worker's compensation insurance coverage by such contractors and/or subcontractors or any cancellation of nonrenewal of worker's compensation insurance coverage for such contractors and/or subcontractors shall be a material breach of this Agreement. Such policies shall contain a waiver of subrogation in favor of the City. D. Auto Liability Insurance. LMMI and all contractors and/or subcontractors of LMMI and all contractors and/or subcontractors of LMMI and all contractors and/or subcontractors hired by LMMI shall have auto liability insurance, with limits of $500,000.00 combined single limit in the aggregate and per occurrence. The City shall be named as an additional insured in such policy. Section 5.03. Reservation of Rights. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document, the former shall control. ARTICLE VI Warranties, Covenants and Representations of LMMI Section 6.01. Existence. LMMI is a corporation duly organized, validly existing and in good standing under the laws of the State of Texas, and is duly qualified to carry on its business in the State of Texas. Section 6.02. Power. LMMI has the corporate power to enter into and perform this Agreement and all activities contemplated hereby. Section 6.03. Authorization. The execution, delivery and performance of this Agreement and the activities contemplated hereby have been duly and validly authorized by all requisite corporate action on the part of LMMI. ARTICLE VII Events of Default and Remedies Section 7.01. Default. An Event of Default (therein so called) shall exist if anyone or more of the following events shall occur: (a) Any representation or warranty made by LMMI is this Agreement shall prove to be untrue or inaccurate in any material respect as of the date on which such representation or warranty is made; (b) LMMI shall default, in any way, manner or form, in the performance of any of the covenants, provisions and/or terms of this Agreement; (c) IMMI shall (i) apply for or consent to the appointment of a receiver, custodian, trustee, intervener, or liquidator of itself or of all or a substantial part of its assets, (ii) voluntarily become the subject of a bankruptcy, reorganization or insolvency proceeding or be insolvent or admit in writing that it is unable to pay its debts as they become due, (iii) file a petition or answer seeking reorganization or an arrangement with creditors or to take advantage of any bankruptcy or insolvency laws, (iv) become the subject of an order for relief under any bankruptcy, reorganization or insolvency proceedings, or (v) fail to pay any money judgment against it before the expiration of thirty (30) days after such judgment becomes final; or (d) LMMI shall default in the payment of any material indebtedness of LMMI. Section 7.02. Remedies upon Event of Default. If an Event of Default shall have occurred and be continuing, then the City, at its option may (i) declare this Agreement, and all rights and interests created by it, terminated and LMMI shall reimburse the City any and all sums provided by the City to LMMI under this Agreement, or otherwise; (ii) assert an action for damages, including, but not limited to, recovery of any and all sums provided by the City to LMMI under this Agreement and/or pursuant to law or equity; and/or (iii) pursue and enforce any rights of the City as provided under or pursuant to any applicable law or this Agreement. In the event the City elects to terminate this Agreement as provided herein, this Agreement shall cease as if the day of the City's election to terminate was the day originally fixed in this Agreement for its expiration. ARTICLE VII Miscellaneous Section 8.01. No Waiver. No failure to exercise, and no delay in the exercise on the part of the City, of any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right. The rights of the City hereunder shall be in addition to all other rights provided by law. Section 8.02. City Rights. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document, the former shall control. Section 8.03. Notice. Any notice required or permitted to be given herein must be given in writing and must be personally delivered, delivered by telephonic facsimile, or mailed by prepaid certified or registered mail to the party to whom such notice or communication is directed at the address of such party as follows: City: Lubbock Moonlight Musicals: Freddy Chavez Director of Civic Services P. O. Box 2000 (806) 775-2236 Fax: (806) 775-3240 Gerald Dolter Associate Professor of Music, Voice Director, TTU Music Theatre P. O. Box 42033 Lubbock, TX 79409 (806)-742-2270 x267 gerald.dolter@ttu.edu Any such notice or other communication shall deemed to have been given (whether actually received or not) on the date it is personally delivered or delivered by telephonic facsimile, or, if mailed, on the third day after it is mailed as aforesaid. Any party may change its address for purposes of this Agreement by giving notice of such change to all other parties pursuant to this Section 8.03. Section 8.04. Assignment/Sublet. This license is personal to LMMI. LMMI shall not assign or sublet this license. Any attempt to assign or sublet this license shall terminate the license granted herein. Section 8.05. City. Unless otherwise provided herein or required by law and/or local ordinance, charter or code, any action required or permitted to be taken by "the City", shall be taken by the City Manager of the City of Lubbock or any party designated by him or her. Section 8.06. Relationship of Parties. The relationship between the City and LMMI is at all times solely that of licensor and licensee, and may not be deemed, in any event, a partnership or a joint venture. Section 8.07. Compliance with Applicable Law. LMMI shall comply with all applicable federal, state and local rules, regulations, statutes, laws and ordinances governing, in any way, manner or form the construction activities contemplated herein, the operation of the Project, and/or any other aspect of the activities described in this Agreement, including, without limitation those regarding to access of the facilities by handicapped persons and the storage, display and alternation of antiquities. Section 8.08. Time of the Essence. Time is of the essence of this Agreement. Section 8.09. Texas Law/Venue. This Agreement is to be construed under Texas law, without regard to conflict of law rules that would direct application of the laws of any other jurisdiction, and all obligations of the parties created by this Agreement are performable in Lubbock County, Texas. Venue for any action brought pursuant to this Agreement, or any activity contemplated hereby, shall lie exclusively in Lubbock County, Texas. Section 8.10. Partial Invalidity. If anyone or more of the provisions contained in this Agreement are for any reason held to be invalid, illegal, or unenforceable in any respect, the invalidity, illegality, or unenforceability will not affect any other provision of this Agreement, which shall be construed as if it had not included the invalid, illegal or unenforceable provision. Section 8.11. Agreements Superseded. This Agreement constitutes the parties' sole agreement and superseded any prior understandings or written or oral agreements between the parties with respect to the subject matter hereof. Section 8.12. Amendment. No amendment, modification, or alteration of this Agreement is binding, unless in writing, dated subsequent to the date of this Agreement, and duly executed by the parties. Section 8.13. Attorney's Fees. If, as a result of either party's breaching this Agreement, the other party employs or uses an attorney or attorneys to enforce its rights under this Agreement, then the breaching party shall pay the other party the reasonable attorney's fees and costs incurred to enforce this Agreement. Section 8.14. Exhibits. The exhibits which are referenced in, and attached to this Agreement, are incorporated in and made a part of this Agreement for all purposes. Section 8.15. Captions. Section captions are for convenience only and shall in no way affect the interpretation of this Agreement. Section 8.16. License Agreement. The intent of this Agreement is to grant a license to LMMI to utilize the Lands solely for the purposes described herein. This Agreement shall not be construed, in any way, manner or form, as a lease of the Lands or as conveying to LMMI any interest in the real property comprising the Lands. Executed and effective as of the date of the execution hereof by the City of Lubbock. CITY OF LUBBOCK, TEXAS — 4a /// GLEN C. ROBERTSON, MAYOR Date executed: May 23, 2013 I n LUBBOCK BY: Nam Title Date MUSICALS, INC. ATTEST: ICe—becVa Garza, City Secretary APPROVE AS TO CO ENT: Scott Snider, Assistant City Manager APPROVED AS TO FORM: my S 1 Attorney License Agreement -Lubbock Moonlight Musicals Inc. 5.13.2013 14 x x to H b mgg MACKENZIE PARK AMPHITHEATER FARTHEL ENGINEERING SOLUTIONS 4411971STS I RI ET o 1 1 011OL A. TV XAS 79424 LUDDOCK,Tit 816.687-8322 0 AXI 8116-687-8321 __ "IX LNG IIRM F-9214 i^ 37.42 acres out of Block O �G Section 3AB 24 r i,:.+:• :7 �l! CITY F *. 37.42 AC R100364 I^ IL a .t L• a � 3.87 AC uw. �t � __� - - _��L' - .>tc.n• _.--�-- EBROADV1Ar EXHIBIT "B" 37.42 acres out of Block O Section 3 AB 24 413 East Broadway Lubbock, TX 79403